Taxi & Limousine Comm n v. Hassan OATH Index No. 170/15 (Jan. 14, 2015), adopted, Comm r Dec. (Feb. 23, 2015), appended

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1 Taxi & Limousine Comm n v. Hassan OATH Index No. 170/15 (Jan. 14, 2015), adopted, Comm r Dec. (Feb. 23, 2015), appended In taxi licensing case, taxi driver alleged to have used force against another driver, injuring him in his face and mouth. ALJ found proof of identification insufficient to sustain violation and recommended dismissal. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of TAXI AND LIMOUSINE COMMISSION Petitioner -against- MD HASSAN Respondent REPORT AND RECOMMENDATION JOHN B. SPOONER, Administrative Law Judge Petitioner, the Taxi and Limousine Commission, ( TLC ), brought this discretionary license revocation proceeding against respondent, MD Hassan, a taxi driver, under sections 54-12(e) and 54-12(g) of title 35 of the Rules of the City of New York ( RCNY ). Petitioner alleges that on December 12, 2013, respondent used force against another taxi driver, injuring him in the face and mouth. A hearing was held before me on December 15, Petitioner presented the testimony of the other driver, through a Bengali interpreter, as well as several records. Respondent also testified using a Bengali interpreter, admitting that he was in the area where the incident took place but denying that he saw or had an encounter with the other driver. be dismissed. For the reasons set forth below, I find that the violation has not been proven and should ANALYSIS Petitioner s proof rested upon the testimony of the complaining witness, Mr. Ahmed, a New York taxi driver for the past eight years. Mr. Ahmed stated that, after an argument over a

2 - 2 - parking space, another taxi driver followed him to a nearby restaurant and punched him in the mouth. Mr. Ahmed failed to identify respondent in a police lineup held three days after the incident. Mr. Ahmed did identify respondent at the hearing as the man who assaulted him. Respondent admitted being near the restaurant at around 1:00 a.m. but insisted that he never encountered Mr. Ahmed. The issue at the hearing was whether Mr. Ahmed s identification of respondent as his assailant was sufficiently credible and reliable to sustain the violation. Mr. Ahmed testified that, at around 1:00 a.m. on December 12, 2013, he parked his leased taxicab on Third Avenue near 28 th Street in order to go to a nearby restaurant frequented by Bengali taxi drivers. After Mr. Ahmed parked, another taxi driver in a yellow taxicab backed up and complained to Mr. Ahmed in Bengali with abusive words that he wanted Mr. Ahmed s parking space. Using similar language Mr. Ahmed said he had already parked and needed to go to the bathroom and eat (Tr ). The driver then called someone on his cell phone, drove north on Third Avenue, and turned left onto East 29 th Street (Tr. 16, 37, 42-43, 77). Mr. Ahmed believed that the driver telephoned a friend to meet him at the restaurant (Tr. 16). Mr. Ahmed walked one block west on East 28 th Street to a restaurant called Hurry and Curry frequented by many Bengali taxi drivers (Tr. 32, 48). As noted at the hearing, Google maps shows that a restaurant called Curry in a Hurry is located at 119 Lexington Avenue at the southeast corner of Lexington Avenue and East 28 th Street (Tr. 81). There were approximately 20 people in front of the restaurant when Mr. Ahmed arrived (Tr. 45). Mr. Ahmed saw the same taxi driver he had encountered on Third Avenue stop his taxi in front of the restaurant. The driver walked over and punched Mr. Ahmed three times in the face. Another man also kicked Mr. Ahmed from behind (Tr. 16, 18). Mr. Ahmed said that he was 100 percent sure that the man who cursed about the parking space was the same man who punched Mr. Ahmed in front of the restaurant (Tr. 18). After the attack, two people helped Mr. Ahmed get up. Mr. Ahmed called 911 and waited for the police to appear. A bystander told Mr. Ahmed the medallion number of the taxicab driven by his assailant. Using this information, Mr. Ahmed told the police that the driver of yellow cab 6G18 had attacked him (Tr ). According to the police complaint (Pet. Ex. 2), Mr. Ahmed identified his assailant as driving medallion number 6G18 and described him as a male Indian, mid twenties, approx. 5 8, medium build, wearing brown T shirt. It was undisputed that, on the night of the incident, respondent was driving medallion 6G18.

3 - 3 - Mr. Ahmed was treated in the emergency room and, due to loose teeth, was sent to the dental clinic (Tr ). Several days later Mr. Ahmed went to the police station and was asked to view a line up. Mr. Ahmed, who was in a lot of pain, did not understand what a line up was and was not able to identify the man who assaulted him (Tr ). Mr. Ahmed telephoned 311 on December 19 and reported the incident to the Commission (Tr ). According to the Commission records (Pet. Ex. 7), Mr. Ahmed reported that another taxi driver complained about losing a parking space and then grabbed him. Some ten to fifteen minutes later, the same driver beat up Mr. Ahmed with the help of two male friends. Mr. Ahmed stated that he was able to identify respondent s photograph from a photo array prepared by the Commission staff (Tr ), although the photo array itself was not offered into evidence at the hearing. Petitioner also introduced GPS records (Pet. Ex. 5) showing that, between 1:00 a.m. and 1:10 a.m., respondent s taxicab stopped and then went north on Third Avenue, traveled east to Lexington Avenue, drove south on Lexington Avenue, and then stopped midblock on East 28 th Street. According to Google maps, Third Avenue is a one-way street going north, East 29 th Street is a one-way street going west, Lexington Avenue is a one-way street going south, and East 28 th Street is a one-way street going east. Respondent testified that, although he was driving his cab near Third Avenue and 28 th Street at around 1:00 a.m., he did not see Mr. Ahmed and did not punch anyone (Tr. 88). Respondent stated that, after dropping off a passenger on First Avenue at around 12:48 a.m. as shown on his trip sheet (Pet. Ex. 5), he drove downtown and then up Third Avenue looking for passengers. There were a lot of taxicabs around East 28 th and 29 th Streets (Tr. 93). He turned left on 29 th Street and drove to Lexington Avenue. Around 28 th Street and Lexington Avenue, respondent picked up a passenger. Another taxi driver got out of a taxicab in front of respondent and argued with respondent in English, accusing him of stealing the passenger. The other driver kicked the door of respondent s taxicab. During the argument, respondent s passengers got out of the cab (Tr ). Respondent then drove his taxicab back to the garage in Queens because he had flown in the previous day from a vacation in Bangladesh and was not feeling well (Tr ). Respondent recalled being called down to a police station and asked questions about where he was at the time of the incident. He was placed in a lineup with five other men who

4 - 4 - looked as if they were from Pakistan or Sri Lanka. Respondent was told that a complainant failed to identify him (Tr ). The petition alleges that respondent violated the Commission rules by using physical force against Mr. Ahmed, causing injury to his face and mouth. Since respondent denies that he encountered Mr. Ahmed that night, the resolution of the factual dispute between the parties depends in part upon analyzing the reliability and credibility of Mr. Ahmed s identification of respondent as his assailant. In analyzing such credibility issues, it is appropriate to consider factors such as witness demeanor; consistency of a witness' testimony; supporting or corroborating evidence; witness motivation; bias or prejudice; and, the degree to which a witness' testimony comports with common sense and human experience. See Dep't of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 4, 1998), aff d, NYC Civ. Serv. Comm n Item No. CD A (Sept. 9, 1998). Mr. Ahmed s statements about being assaulted and injured were corroborated by several documents. A police incident report (Pet. Ex. 1), reports that an assault was reported to the police at around 1:10 a.m. at 135 East 28 th Street. A police complaint (Pet. Ex. 2) similarly reports that Mr. Ahmed was punched in the mouth at around 1:10 a.m. Bellevue Hospital records (Pet. Ex. 4) show that Mr. Ahmed was treated in the emergency room for mobility of... teeth and returned on December 30, when three teeth were found to be fractured requiring extraction. The reliability of Mr. Ahmed s identification of respondent as his assailant, however, was challenged on a number of fronts. First, Mr. Ahmed failed to pick respondent out of a police lineup arranged some three days after the incident. Although petitioner s counsel speculated that this failed identification may have been due to drowsiness from prescribed painkillers, the fact that Mr. Ahmed evidently drove his taxicab to the police precinct (Tr. 28) undermines this assertion. Both Mr. Ahmed and respondent indicated that there were a large number of Bengali taxi drivers gathered at the scene, making a mistaken identification possible. Mr. Ahmed stated that there were approximately 20 people outside of the restaurant when Mr. Ahmed approached it (Tr. 45). Mr. Ahmed identified his assailant to the police as driving medallion number 6G18 and described him as a male Indian, mid-twenties, approx. 5 8, medium build, wearing brown T

5 - 5 - shirt. It is true that this general description fit respondent, who looked Indian, was of medium build and height, and was a young-looking 33 years old. At the same time, Mr. Ahmed s statement in his 311 complaint that he was attacked by not one but three men raised further doubts about the reliability of his identification testimony. The proof linking the driver who assaulted Mr. Ahmed with respondent s medallion number was unreliable in that it came, not from Mr. Ahmed, but from an unidentified bystander. Mr. Ahmed could provide no information as to precisely what the bystander said or how this bystander happened to link the medallion number to the assault (Tr ). The value and reliability of purely hearsay statement requires considering factors such as the identity of the hearsay declarant, the availability of the declarant to testify, the declarant's personal knowledge of the facts, the independence or bias of the declarant, the detail and range of the hearsay, whether the statements were oral or written, signed and sworn or unsworn, the degree to which the hearsay is corroborated, the centrality of the hearsay evidence to the agency's case, and the magnitude of the administrative burden should the hearsay be excluded. Dep't of Environmental Protection v. Cortese, OATH Index No. 1613/06 at 7 (Sept. 12, 2006). Analyzed using these factors, the hearsay linking respondent s medallion number to the assault was of marginal worth. The hearsay declarant was unidentified, there was no detail provided by Mr. Ahmed as to what the bystander actually stated, and there was no assurance of what the bystander had actually witnessed. The limited corroboration that respondent s taxi was, indeed, in the vicinity did little to link respondent with the assault since it was undisputed that there were a number of taxis and taxi drivers at the location. Other evidence which might have buttressed Mr. Ahmed s identification of respondent was not offered. Mr. Ahmed evidently selected respondent s photo from a Commission-arranged photo array. However, the fact that respondent s photo was selected from a group of photos has no evidentiary value unless the other photos shown to Mr. Ahmed corresponded to the arrest report description of a young Indian or South Asian of medium build. Without the photo array itself in evidence, there could be no assessment of whether Mr. Ahmed s selection of the photo had any probative value as to identification. See Taxi and Limousine Comm n v. Shazad, OATH Index No. 512/96 (Jan. 12, 1996) (photo array evidence found insufficient to establish identification of driver and charges dismissed).

6 - 6 - Although I credited Mr. Ahmed s description of being punched, there was an ambiguity about Mr. Ahmed s motives in complaining about respondent. On the one hand, Mr. Ahmed testified that he brought the complaint against respondent because he wanted justice (Tr. 60). On the other hand, Mr. Ahmed testified that he had not yet filed a lawsuit concerning the incident (Tr. 84), suggesting that he might do so in the future. It seemed possible that having an identifiable party to initiate a personal injury action against might have motivated Mr. Ahmed to display more certainty about his identification of respondent than he might otherwise have been. There were many instances where details offered by Mr. Ahmed were confusing or illogical. At one point, Mr. Ahmed insisted that he could not forget the face of the man who initially spoke with him about the parking space and then punched him in the face (Tr. 53). Yet when asked whether he had known respondent prior to the incident, Mr. Ahmed testified, So we are one thousand cab driver, so many, so many cab driver we saw on the street, sometime we talk, sometime we are, we ve been familiar (Tr. 38). Mr. Ahmed later testified that there were too many people in front of the restaurant and I didn t know who were attacking me (Tr. 51). Still later he stated that respondent s face was known to him prior to the incident but seconds later stated that he was not familiar with respondent prior to the incident (Tr. 85). At several junctures, both the attorneys and this tribunal commented that the answers given by Mr. Ahmed, particularly about his dental problems, did not seem responsive to the questions asked (Tr ). These equivocations on the part of Mr. Ahmed weakened the overall reliability of his testimony, but were particularly damaging to the details as to identification. Petitioner s counsel also contended that the GPS records showing a log off at 1:05 a.m. buttressed the identification proof in that it exhibited an intention by respondent to take a break to assault Mr. Ahmed on Lexington Avenue. However, no explanations were offered at the hearing as to how the log on and log off notations in the GPS records were generated. Nor was respondent asked any questions about the 1:05 a.m. log off at the hearing. I also note that respondent s tripsheet reflects that respondent went on duty at 5:58 p.m. on December 11 and remained on duty until 1:22 a.m. on December 12, when he went off duty. This is consistent with respondent s testimony that he tried to take another passenger on 28 th Street at around 1:11 a.m. and does not support the argument that he deliberately went off duty in order to effectuate an attack on Mr. Ahmed.

7 - 7 - As properly noted by petitioner s counsel, the GPS data (Pet. Ex. 5) showing the movements of respondent s taxicab between 1:00 a.m. and 1:10 a.m. was perhaps the strongest proof that respondent was the taxi driver Mr. Ahmed encountered on Third Avenue and minutes later on Lexington Avenue. The GPS data shows that, at around 1:01 a.m., respondent s taxicab drove across East 28 th Street to Third Avenue two times and turned left on Third Avenue. Respondent s taxicab next stopped at 400 Third Avenue near East 29 th Street at 1:04 a.m., also consistent with Mr. Ahmed s testimony that he and the other taxi driver had an argument about a parking space on Third Avenue. At 1:05 a.m. respondent s taxicab was moving northwest on Third Avenue near 28 th Street and at 1:08 a.m. it was stopped midblock at 160 East 28 th Street between Third and Lexington Avenues. The GPS records were somewhat consistent with the testimony of respondent and Mr. Ahmed. The data showing that respondent s taxicab circled the block between Third Avenue and Lexington Avenue at East 28 th Street is consistent with respondent s account that, after dropping off a fare on First Avenue, he drove downtown, he drove up Third Avenue looking for passengers, and then stopped on East 28 th Street where he had an argument with another taxi driver about a passenger before ending his shift and going back to Queens. The data is also generally consistent with Mr. Ahmed s description of the movement of the driver who attacked him. Respondent s uncorroborated denials of encountering Mr. Ahmed at all that night, but of arguing with another driver about stealing a fare, did not seem particularly credible, particularly given respondent s strong motive to refute the allegations and avoid having his license revoked. As pointed out by petitioner s counsel, it seemed a remarkable coincidence that respondent s taxicab would have been first on Third Avenue and then minutes later on East 28 th Street at the times that Mr. Ahmed had the argument about the parking space and then was assaulted. On the other hand, the GPS proof was slightly inconsistent with Mr. Ahmed s testimony that the assailant s taxicab stopped in front of the restaurant on Lexington Avenue at East 28 th Street (Tr. 81). The GPS data shows that respondent s taxicab was stopped, not on Lexington Avenue, but several hundred feet away on East 28 th Street about midway between Lexington Avenue and Third Avenue, where it would not have been visible to Mr. Ahmed. The burden of establishing that respondent was the same person who assaulted Mr. Ahmed lies with the Commission, which must establish that it is more likely than not that

8 - 8 - respondent committed the violation. Police Dep't v. Walla, OATH Index No. 262/90 at (Oct. 26, 1989), citing, Bazemore v. Friday, 478 U.S. 385, 400 (1986). If the evidence is equivocal or gives equal support to inferences of both guilt and innocence, judgment must go against the party with the burden of proof. Walla at 11, citing Fort Smith Gas Co. v. Cloud, 75 F.2d 413, 416 (8th Cir. 1935). In this case, I find that the evidence as to the central identification issue was not sufficient to establish that it was more likely than not that respondent was the driver who assaulted Mr. Ahmed. Despite the somewhat persuasive GPS evidence placing respondent s taxicab at two locations at the approximate times Mr. Ahmed stated he encountered the other driver, Mr. Ahmed s failure to identify respondent at the lineup, the failure to convincingly link respondent s medallion number to the assault, and the confusing texture of much of Mr. Ahmed s testimony combined to undermine petitioner s identity proof. Most importantly, the undisputed fact that the location was a gathering spot for Bengali taxi drivers working the night shift made respondent s mere presence at the location, which is all the GPS data could establish, insufficient to prove his identity as the attacker. Due to the unreliability and insufficiency of the Commission s proof on identification, I find that the violation has not been proven by a preponderance of the credible evidence and recommend that the petition be dismissed. January 14, 2015 John B. Spooner Administrative Law Judge SUBMITTED TO: MEERA JOSHI Commissioner APPEARANCES: STAS SKARBO, ESQ. Attorney for Petitioner CYNTHIA D. FISHER, ESQ. Attorney for Respondent

9 - 9 - Commissioner s Decision (Feb. 23, 2015) A hearing was held on December 15, 2014, at the New York City Office of Administrative Trials and Hearings ("OATH"). After hearing the evidence presented, the presiding Administrative Law Judge ("ALJ") recommended that the charges against respondent of violating TLC Rules 54-12(e) and 54-12(g) be dismissed. The complaining-witness testified that he got into an argument with another taxi driver over a parking spot on 3rd Avenue and 28th Street at or around 1:00 a.m., December 12, The complaining-witness then walked one block west into a popular restaurant on 28th and Lexington Avenue, where he was assaulted. The ALJ credited the complaining-witness's account that he was assaulted at or around 1:00 a.m., December 12, 2013 at the southeast corner of Lexington Avenue and 28th Street. Petitioner submitted Global Positioning System ("GPS") data into evidence that shows that respondent was driving your taxi in the close vicinity of the assault at the time that the assault occurred. Respondent testified that while he did argue with another driver over a stolen fare around this time, he denied ever encountering the complaining-witness. The ALJ did not find this testimony to be credible. The ALJ noted respondent s strong motivation to refute the allegations, as well as the "remarkable" coincidence that his cab would have been first on 3rd Avenue and then minutes later on East 28th Street at the times that Mr. Ahmed had the argument about the parking space and was then assaulted. Finally, the ALJ did note that the complaining-witness, using a photo array provided by the TLC, identified respondent as the person that attacked him on December 12, However, the ALJ determined that there were multiple challenges to the reliability of that identification. First, the complaining-witness failed to identify respondent at a police lineup three days after the assault. While the complaining witness claims to have been affected at that time by the use of painkillers, the ALJ noted that the fact that the complaining-witness was able to drive his own taxi to the police line-up undermines that explanation. Second, the ALJ noted that the photo array in which the complaining-witness identified respondent was never entered into evidence at the hearing. The photo selection would have little evidentiary value unless the array consisted of photos that matched the police description report of young Indian or South Asian men of medium build. As the array was never submitted into evidence, the ALJ was unable to determine its probative value.

10 Third, the scene of the assault was a restaurant that was popular among Bengali taxi drivers. The record indicates that there were around twenty people gathered in the front of the restaurant at the time of the assault, making a mistaken identification quite possible. Fourth, Mr. Ahmed relies upon a witness who claimed that the assailant drove a cab with respondent s medallion number. That witness remains unidentified, and Mr. Ahmed could provide no information as to how the bystander was able to link the medallion number to the assault. Upon examination of the facts, the ALJ found that the evidence did not establish that it was more likely than not that respondent assaulted Mr. Ahmed. Therefore, upon careful review of the record before me I accept the ALJ's recommendation and hereby dismiss the charges against respondent. I find that, due to the challenges to the reliability of the complaining-witness's identification, the burden of proof was not met. Meera Joshi Commissioner

Taxi and Limousine Comm n v. Koneh OATH Index No. 2146/14 (June 13, 2014)

Taxi and Limousine Comm n v. Koneh OATH Index No. 2146/14 (June 13, 2014) In discretionary license revocation proceeding, petitioner failed to prove that a taxi driver used physical force against a passenger.